NJ Schools Not Affected By New Fed Guidance On Transgender Students In Light Of NJLAD

Earlier this week the US Departments of Justice and Education issued guidance that rescinds a May 2016 guidance document that outlined the accommodations that districts should consider for transgender students. The February 22 document leaves the matter up to individual States, but reaffirms that transgender students retain civil guarantees that have traditionally been provided under federal law.

In New Jersey, gender identity is affirmatively protected under the Law Against Discrimination (NJLAD). N.J.S.A. 10:5-1 et seq. In fact, the NJLAD is one of the most comprehensive civil rights statutes in the country, specifically prohibiting discrimination in places of public accommodation, and mandating that in sex- segregated public accommodations, such as bathrooms or locker rooms, a person must be allowed to use the facility consistent with their gender identity or expression.

The NJLAD specifically defines public schools as places of public accommodation covered under the statute. Accordingly, the NJLAD not only prohibits discrimination against students based on their gender identity or expression, it mandates that students in public schools be permitted to use sex-segregated facilities, such as bathrooms and locker rooms, in accordance with their “gender identity or expression.”

The law is clear – a student must be permitted to use the bathroom or locker room in accordance with his or her gender identity. As such, based on the significant protections afforded under the NJLAD, NJPSA believes that recent federal guidance will have little if any legal impact in New Jersey.

Moreover, this sentiment is echoed in the NJ Administrative Code with the section on Managing Equity and Equality in Education specifically identifying gender identity and expression in the chapter’s purpose. See. N.J.A.C. 6A:7-1.1

Another area that raises concern involves the participation of transgender students, generally transgender girls, in interscholastic athletics. Although there are no reported cases in New Jersey to date that have dealt with a transgender student’s rights to participate in interscholastic sports, the New Jersey State Interscholastic Athletics Association (NJSIAA), which oversees a large segment of high school athletics in New Jersey, has developed a set of policies for allowing transgender athletes to participate in interscholastic athletics in accordance with their gender identity. These policies are available on the NJSIAA website in the NJSIAA Constitution.

Finally, the Acting Commissioner of Education has indicated that she will continue to approach the issue consistent with the stance then Commissioner David Hespe took – namely that districts, through school boards, need to address the issue of gender identity through the policies they adopt.

As such, based on the significant protections afforded under the NJLAD, NJPSA believes that recent federal guidance will have little if any legal impact in New Jersey.